Two steps forward and one step back, the role of dispute settlement in elucidating the norm of environmental protection in the world trade organization

by Cameron, Hugo Donald

This thesis examines the interaction of states' rights and obligations (norms) within the context of the World Trade Organization (WTO). In particular, it addresses how the norm of environmental protection has ban dealt with in the WTO's dispute settlement mechanism. Two case studies were selected based on their cornmon environmental characteristics: the 1996 United States-Standards for Reformulated and Conventional Gasoline and the 1998 United States-lmport Prohibition of Certain Shrimp and Shrimp Products. Both cases exhibit conflicts between aspects of a traàe-restrictive nom of environmental protection on the one hand, and trade-centric noms (nondiscrimination, liberalization, and economic development) on the other. The thesis argues that when tradeoffs must be made between traditional General Agfeement on Tanffs and Trade(GATT)MrTO noms and environmental priorities, current patterns in WTO dispute settlement indicate that trade-centric norms are likely to continue taking precedence. The assumption is made that the inclusion of a well-developed environmental nom within the WTO is vital if further trade liberalization is to proceed without significant negative effects on the global environment. Drawing on regime theory literature as the central theoretical framework, this study explores the extent to which the environmental features of the international trade regime have been applied in practice. Regirnes can be seen to alter the payoff structure for state behaviour in international relations. As a result, the relative infiuence of the norms that guide a regime will affect which domestic policies will stand up to scrutiny under dispute settlement, where norm confiict is evidenced. A parallel is drawn beheen the historical nom interaction under the GATT and the development of the environmental norm in the WTO. The study concludes that WTO dispute settlement panels have been overly cautious in their interpretation of environmental aspects of the WTO Agreements, and that future decisions could integrate an environmental norm more fully without posing a threat to the multilateral trade regime. iii " There should not be, nor need bey any policy contradiction between upholdàng and safeguardàng an open, non-discriminatory and equitable multàiateral trading systern an the one band, and acting for the protection of the environment, and the promotion of sustainable development on the other. " -WTO Decision on Trade and Environment (WTO Agreements, 1995) . . .to my grandfather Donald Stewart Forsyth Cameron. in memoriam...